H.E. NO. 86-42

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

N. J. TRANSIT BUS OPERATIONS, INC.,

Respondent,

-and-	Docket No. CO-85-158-170

LOCAL 824, AMALGAMATED TRANSIT UNION,

Charging Party.

Appearances:

For the Respondent

W. Cary Edwards, Attorney General

(Jeffrey Burstein, D.A.G.)

For the Charging Party

Oxfeld, Cohen & Blunda, Esqs.

(Arnold S. Cohen, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on December 20, 1984, and amended on June 26, 1985, by Local 824, Amalgamated Transit Union (hereinafter the Charging Party" or the "Union" or "824") alleging that N.J. Transit Bus Operations, Inc. (hereinafter the "Respondent" or "NJT") has engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:l3A-1 et seq. (hereinafter

the "Act"), namely, that the Respondent violated N.J.S.A. 34:13A-5.4(a)(1) through (5).1/

On October 25, 1985, the instant Hearing Examiner granted the Respondent's Motion to Dismiss as to ¶'s 3-6, 8-15, 17, 19-29, 33-39, 41, 43-48 and 50-56 of the Complaint: H.E. No. 86-18, 12 NJPER 37. However, a plenary hearing was ordered as to ¶'s 7, 18, 30 and 31 of the Complaint and a hearing on these allegations was held on November 18, 1985 and January 6, 1986.

The allegations as to which plenary hearings were conducted pertained to claims that the Respondent sought to break or undermine 824 or reduce its membership. These allegations may be summarized as follows:

¶7:	The Union alleges that the Respondent sold its Rte. 9-Wall Street route to a private carrier in an attempt to reduce the membership of the Union, six members having been displaced and

1/	These subsections prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act; (2) Dominating or interfering with the formation, existence or administration of any employee organization; (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act; (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under this act; (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative."

dispersed as a result of the sale. This occurred in June, 1983, at a time when the Union had 315 active members whereas on the date of the initial hearing the Union had 305 active members.

¶18: The Union alleges that in May, 1984, the Respondent sold two of its routes to Suburban Bus Co., as a result of which two members of the Union were displaced and that this was done in order to sap the strength of the Union.

¶30: In July, 1984, Charles Bresnahan, the garage supervisor at Old Bridge, said to James B. Lynch, the President and Business Agent of the Union, "...The Union can't afford to take all of these cases to arbitration, we'll break you." Bresnahan also stated that the Respondent would not "entertain" first-step grievances and on a later occasion said, "What do you guys want now?"

¶31: It is alleged that on a number of occasions during the last six months Ed Cunningham, the second-step hearing officer under the agreement, has stated that he would not rule in favor of the Union as he wants it to take grievances to the third step or to arbitration, all of which is alleged to be part of a plan by the Respondent to undermine the Union.

As noted above, the plenary hearing on the issues raised by paragraphs 7, 18, 30 and 31 of the Complaint were held on November 18, 1985 and January 6, 1986, in Newark, New Jersey, at which time the parties were given an oppportunity to examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the parties filed post-hearing briefs by February 24, 1986.

An Unfair Practice Charge, as amended, having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after a plenary hearing on ¶'s 7, 18, 30 and 21 of the Complaint, and after consideration of the post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.

Upon the entire record, the Hearing Examiner makes the following:

FINDINGS OF FACT

1.	N. J. Transit Bus Operations, Inc. is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	Local 824, Amalgamated Transit Union is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	Paragraphs 3-5 of the initial Findings of Fact in H.E. No. 86-18 are incorporated herein by reference thereto (12 NJPER at 38).

Findings With Respect To

¶ 7 Of The Complaint.

4.	Albert R. Hasbrouck, the Assistant Executive Director of N.J. Transit Corp. Headquarters, testified credibly as follows regarding the extension of Rte. 9 corridor service to Wall Street in the Fall of 1983: Approximately 100 buses per day operate in the Rte. 9 corridor, which is a major operation of N.J. Transit Bus

Operations, Inc. NJT operated to Wall Street for approximately one year before this service was discontinued as a result of the settlement of a Federal District Court lawsuit instituted by New York-Keansburg Bus Company on June 9, 1983 (R-10), the settlement having been reached on October 14, 1983, (R-11). In this settlement NJT agreed to discontinue its Wall Street service and New York-Keansburg agreed not to operate in the Rte. 9 corridor. The foregoing settlement between NJT and New York-Keansburg had nothing whatsoever to do with 824.

5.	James J. Vergari, the Assistant Manager of Labor Relations for NJT, testified credibly regarding the effect on 824 members as a result of the discontinuance of the Wall Street service, supra. Local 824 lost six operators who were reassigned to two other locations, two operators going to Local 821 of ATU and four operators going to Local 823 of ATU. Eventually all six operators returned to Local 824 after a lapse of approximately 2-1/2 months. The Hearing Examiner does not credit the testimony of Lynch that the Respondent discontinued the Wall Street service in order to reduce the membership of 824, primarily because 824 regained the six operators who were initially displaced and, further, because the Respondent clearly demonstrated a legitimate business justification in having discontinued its Wall Street service in the face of a lawsuit by New York-Keansburg Bus, which was settled for objective reasons, namely, NJT having agreed to discontinue its Wall Street service and New York-Keansburg having agreed to refrain from providing service in the Rte. 9 corridor.

Findings With Respect To

¶ 18 Of The Complaint.

6.	Hasbrouck testified credibly as follows regarding the decision of NJT to discontinue service from Milltown, New Jersey, to New York City: NJT had been providing service twice a day from Milltown to New York City and decided to discontinue service on April 28, 1984, because NJT was losing money, having been carrying only 30 passengers per trip. Suburban Transit Corp. agreed to step in and pick up the service, it being the dominant carrier in the area. Suburban Transit is now providing service three times per day whereas as NJT provided service only two times per day between Milltown and New York City. The Hearing Examiner finds as a fact that the decision of NJT to discontinue service between Milltown and New York City is totally unrelated to any impact upon the membership of 824 and was based solely upon legitimate business considerations, namely, the loss of revenue from having carried only 30 passengers per trip. Hasbrouck testified credibly that no one was laid off as a result of the decision of NJT on April 28, 1984, supra, but he acknowledged that transfers were made to other garages. The testimony of Lynch that two 824 members were displaced is credited but the Hearing Examiner finds that the above decision of NJT was not made in order to sap the strength of 824 as contended by Lynch.

Findings With Respect to

¶30 of the Complaint.

7.	Charles Bresnahan, the Supervisor of Howell Garage, which has locations at Old Bridge and Lakewood, testified credibly

that he holds first-step hearings but has two assistants, one in Old Bridge and one in Lakewood, who also hold first-step hearings. Bresnahan stated that he holds well under 50% of these first-step hearings.

8.	Bresnahan testifed credibly that he did not make a statement to Lynch that, "...the Union can't afford to take all of these cases to arbitration, we'll break you" (Tr 1/6:33, 34). The crediting of Bresnahan in this regard is based upon the respective demeanors of Bresnahan and Lynch, their respective abilities to recall events2/ and the total unlikelihood that Bresnahan, in his position, would make such a statement. Further, the Hearing Examiner does not credit Lynch's testimony that Bresnahan stated that he would not entertain first-step grievances in view of the fact that Bresnahan testified credibly that he had never refused to hold a first-step hearing brought by Lynch if it was "properly brought." By that Bresnahan testified that he meant that if no grievant was present he did not consider that a first-step hearing was properly brought, pointing to the contract grievance procedure, the first step of which refers to a grievance being taken up between the "employee" and the Union and supervision (J-1, p. 2).

9.	Lynch conceded that any actions by Bresnahan did not cause the Union to incur any expense and that any delay by Bresnahan

2/	The Hearing Examiner observed during the testimony of Lynch that he was frequently vague and imprecise and, additionally, his testimony was often implausible.

in bringing three cases to arbitration was due to Bresnahan's unavailability on a vacation in Ireland in June, 1984.

Findings With Regard to

¶3l Of The Complaint.

10.	Ed William Cunningham, a District Manager of NJT, supervises eight garages and handles second-step grievances for four locals of ATU, including 824. Lynch testified that Cunningham has stated that he would not rule in favor of 824 and that this is part of a plan by NJT to undermine the Union. Lynch illustrated this in the case of eight bus operators who were written up for falsifying a delay report on May 15, 1984. Shortly thereafter the eight operators were given a one-day suspension, subsequent to which Lynch requested a second-step hearing (see generally R-9). Lynch had wanted one operator to represent all eight at the second-step hearing which was denied by Cunningham. Cunningham appeared in Lakewood on May 21, 1984, for a second-step hearing where only two operators appeared and the grievances were denied. On June 15, 1984, Cunningham again returned to Lakewood where only one operator appeared. Cunningham testified credibly that he had told Lynch that all operators had to be present in order for a second-step hearing to be conducted. Lynch gave no reason to Cunningham why the other five operators were not present and Cunningham took the position that the grievances ceased to exist, citing the second-step of the grievance procedure in the contract, which requires the attendance of the grievant where necessary for disposition of the grievance (J-l, p. 3). Cunningham testified credibly that he never stated to

Lynch that he denied second-step grievances so that they would have to go to the third step or to arbitration. Lynch's testimony to the contrary is discredited, based on the demeanor of the respective witnesses and the total implausibility that Cunningham would make such a statement.

11.	During the years since April 1983 that Lynch has been President and Business Agent of 824, the Union's record in arbitration has been as follows: prevailed in 6 cases; lost 17 cases; and obtained mixed results in 4 cases.

DISCUSSION AND ANALYSIS

The Evidence Adduced With Respect To

¶'s 7 And 18 Of The Complaint

Establishes That The Respondent Did

Not Violate Any Of The Subsections

Of The Act Alleged By 824.

Although the Respondent argues persuasively that ¶'s 7 and 18 of the Complaint should be dismissed as untimely under §5.4(c) of the Act, the Hearing Examiner prefers to consider the evidence adduced by the parties on the merits in disposing of these allegations.

First, with respect to ¶7, the Hearing Examiner refers to his Findings of Fact Nos. 4 & 5, supra, which established conclusively that the Respondent exercised a managerial prerogative, totally unconnected with 824, when it discontinued its Wall Street operation after one year of service. First, the decision to discontinue resulted from the settlement of a Federal District Court lawsuit instituted by New York-Keansburg Bus Company in June 1983.

The settlement, which was consummated in October 1983, had nothing whatsoever to do with the Union. All of the foregoing was credibly testified to by Hasbrouck.

Any suggestion that the Respondent was illegally motivated toward 824 in the discontinuance of the Wall Street service is totally negated by the testimony of Vergari who testified credibly that 824 initially lost six operators who were reassigned to two other locations and two other locals of ATU, but eventually all six operators returned to 824 after a lapse of approximately 2-1/2 months. It is clearly untenable for 824 to contend in this proceeding that the Respondent was illegally seeking to reduce the membership of 824 since the six operators initially displaced returned to 824 after several months.

With respect to ¶18, the Hearing Examiner has credited the testimony of Hasbrouck that the decision to discontinue service between Milltown and New York City was totally unrelated to any impact on the membership of 824. Rather, the decision to permit Suburban Transit Corp. to pick up the service from Milltown as the dominant carrier in the area was based solely upon legitimate business considerations, namely, the loss of revenue to NJT from having carried only 30 passengers per trip. Although no one was laid off as a result of the decision, which occurred on April 28, 1984, there were transfers made to other garages. Although the testimony of Lynch that two 824 members were displaced is credited, the Hearing Examiner finds that the conduct of NJT with respect to Suburban Transit was not made in order to sap the strength of 824.

In connection with both ¶'s 7 & 18, the Hearing Examiner notes his agreement with the Respondent's citation of Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. Ed., 78 N.J. 144 (1978) and Local 195 v. State of New Jersey, 88 N.J. 393 (1982) as supporting its contention that an employer has a managerial prerogative to transfer employees or to subcontract work in the absence of illegal motivation, i.e., anti-union animus as the basis for its actions (Respondent's brief, pp. 3-5).

The Evidence Adduced With Respect To

¶'s 30 And 31 Of The Complaint

Establishes That The Respondent Did

Not Violate Any Of The Subsections

Of The Act Alleged By 824.

Paragraphs 30 & 31 of the Complaint basically allege misconduct on the part of Bresnahan and Cunningham in connection with the administration of the grievance procedure at steps one and two of a four-step contractual grievance procedure. The Respondent correctly argues that employer comments directed to the public employee representative regarding grievances are given considerable latitude: Ridgefield Park Bd.Ed., P.E.R.C. No. 84-152, 10 NJPER 437 (1984) and, also, Black Horse Pike Reg. Bd.Ed., P.E.R.C. No. 82-19, 7 NJPER 502 (1981).3/

Further, since a portion of the allegations in ¶'s 30 & 31 of the Complaint involves the proper response of Bresnahan and

3/	Cf., Middletown Twp., P.E.R.C. No. 84-100, 10 NJPER 173 (1984) and Ridgefield Public Library, P.E.R.C. No. 84-112, 10 NJPER 255 (1984).

Cunningham at steps one and two of the grievance procedure, the Hearing Examiner notes that the Commission's Director of Unfair Practices has consistently held that the refusal of an employer to respond to a grievance, or to deny the grievance at any step of the grievance procedure, is not in and of itself an unfair practice where the employee representative can automatically proceed to a higher level of the grievance procedure, including binding arbitration, such as is provided in J-1 herein: Boro of Mountainside, D.U.P. No. 85-17, 11 NJPER 6 (1984); Twp. of Rockaway, D.U.P. No. 83-5, 8 NJPER 644 (1982); and City of Pleasantville, D.U.P. No. 77-2, 2 NJPER 372 (1976).

Turning now to the evidence with respect to ¶30 of the Complaint, which involves alleged illegal conduct on the part of Bresnahan, the Hearing Examiner refers to his Findings of Fact Nos. 7-9, supra, wherein he has credited Bresnahan's testimony that he never made a statement to Lynch to the effect that the Union cannot afford to take all of these cases to arbitration, concluding with the statement, "we'll break you."4/ Additionally, the Hearing

4/	The transcript of October 1, 1985, at p. 111, lines 2-5, quotes Lynch as having testified that the concluding portion of Bresnahan's statement was "It will break you." The notes taken by the Hearing Examiner disclose that Lynch's testimony was consistent with the allegation in ¶30 of the Complaint that Bresnahan said, "we'll break you." In concluding that the court reporter must have erred, the Hearing Examiner refers to the transcript of January 6, 1986, where Bresnahan, on direct examination, denied making the statement to Lynch, "we'll break you." (Tr 1/6: 33, 34). This testimony is also consistent with the Hearing Examiner's notes. Accordingly, the transcript of October 1, 1985, p. 111, supra, is deemed corrected.

Examiner has refused to credit the testimony of Lynch that Bresnahan said he would not entertain first-step grievances in view of the credible testimony of Bresnahan that he never refused to hold a first-step hearing if it was "properly brought." Here Bresnahan referred to the first step of the grievance procedure, which refers to a grievance being taken up between the "employee" and the Union and supervision. The position of Bresnahan, expressed to Lynch, that first-step grievance must be "properly brought" appears perfectly logical and consistent with the first step of the contractual grievance procedure (J-1, p. 2). Lynch even conceded that any actions by Bresnanhan did not cause 824 to incur any expense and that the delay in bringing three cases to arbitration was due to Bresnahan's legitimate unavailability.

Moving next to ¶31 of the Complaint, and the conduct of Cunningham in the handling of second-step grievances, the contractual grievance procedure clearly supports Cunningham in the manner in which he handled the second-step hearings on May 21 and June 15, 1984. Lynch had wanted one of the eight suspended operators to represent all eight operators at the hearing. Cunningham denied this request, testifying credibly that he had told Lynch that all operators had to be present in order for the hearing to be conducted. Lynch provided no reason why all operators were not present and Cunningham properly took the position that the grievances had ceased to exist, referring to the second step of the grievance procedure (J-1, p. 3). Finally, the Hearing Examiner has

credited Cunningham's denial that he ever stated to Lynch that he denied second-step grievances so that they would have to go to the third step or arbitration. Even if this were true, the fact is that 824 had an automatic removal of the grievance to the next step, as to which no violation of the Act could be found based on Mountainside, supra.

* * * *

Based on all the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following:

CONCLUSION OF LAW

The Respondent did not violate N.J.S.A. 34:13A-5.4(a)(1) through (5) by its conduct herein with respect to ¶'s 7, 18, 30 & 31 of the Complaint.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety.

Alan R. Howe

Hearing Examiner

Dated: February 28, 1986

Trenton, New Jersey